Toronto Proposes Added Restrictions on “Natural Gardens”

The Licensing & Standards Department of Toronto, Ontario has declared war on Conservation Gardeners. Requested to deliver a report to alleviate the current rate of residents required by the department to apply for permission to have a “natural garden” (a ridiculous concept), they have responded with a series of measures designed to discourage the growth of anything other than turf grass. Their recommendation was considered on Friday November 16, 2012. The results are in, and I for one, am not pleased. Conservation gardens are still being vilified and lumped into the same category as neglected yards…no other garden style is to be subjected to this level of ongoing scrutiny. There is still hope, register your comments with Council before its November 27th sitting via clerk@toronto.ca

If the implications of this report concern you, you may still register your comments with Toronto’s MLS Committee:lsc@toronto.ca (subject line: RE: 2012.LS17.2, November 16, 2012 Licensing and Standards Committee) and write to Toronto’s Mayor Rob Ford urging him to intercede: mayor_ford@toronto.ca

I ask that Committee reject the submitted report in its entirety and reiterate Council’s request for a “process to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.”

Many may not be familiar with the precepts of the ecological gardening movement, however, there are an increasing number of people worldwide who recognize that growing alien, often invasive, turf grass is a tragic waste of resources and environmentally counter-productive; particularly in this time of global warming and species loss.

More and more countries and municipalities are recognizing the desire and need for individual properties to join together in making a difference and are encouraging their citizens to put their yards to productive use in either growing food or native plants that aid the stressed populations of pollinators on which our food crops rely, and other wildlife.

Cash for Grass programs are being used elsewhere to offer tax breaks to citizens willing to forgo their outmoded turf yards. The use of native plants is being mandated in some drought stricken localities. Only a few of the most out of touch communities continue to prosecute those who choose to garden with the needs of the planet in mind.

It is distressing to find Toronto within that last group.

True, the gardens now being popularized may not look like the ones most of us remember from our childhoods, but they do resemble those cherished by our parents or grandparents – patches of earth that interact more harmoniously with nature than today’s “traditional” gardens of barren turf grass and alien annuals.

Garden styles that are among the first to arrive in neighbourhoods sometimes fall victim to derision and even vandalism from their neighbours. Still, the innovative implementers of these projects persist in the hopes that over time and with exposure to new concepts, more people will learn to accept and perhaps even embrace their plantings. It is unconscionable that some of these must also fight the same City that actively promotes the implementation of rain saving, fiscally and environmentally responsible, conservation gardens. Being different is not unlawful.

The Details:
City Council on July 11, 12 and 13, 2012, adopted the following:Request the Executive Director, Municipal Licensing and Standards, to review Chapter 489, Grass and Weeds, Section 489 E and submit a report to the Licensing and Standards Committee on any recommended changes to the By-law and exemption process to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.

Please note that the request of Council was seemingly intended to stop the ongoing harassment of residents who have not violated bylaw 489 by allowing noxious weeds to grow or by failing to mow their lawns. These residents have simply elected to manage their yards in a manner that may differ stylistically from those of their neighbours. This report does not address that request and in fact places additional “unnecessary and unwarranted” restrictions on those choosing to exercise the Charter protected right to garden in an environmentally responsible manner. It further suggests adding costs for ongoing unwanted monitoring of private property to the owner.

Not having a lawn is no way illegal, immoral, disreputable, or harmful to “the quality of Toronto’s appearance and its visual character”. By referencing such terms, the MLS Department demonstrates that it lacks an understanding of the important environmental and fiscal role that can be played by the thousands of acres making up Toronto’s private yards. Cultivating “natural gardens” is unquestionably far more responsible and defensible than cultivating alien turf grasses which are now widely recognized as ecologically useless and resource depleting manifestations of a bygone era, yet the MLS department routinely sends notices to residents simply because their yards lack lawn or otherwise appear to the eyes of individual inspectors to be unusual.

It should be noted that the original precept of including an exemption for “natural gardens” within bylaw 489 was to recognize that gardening styles are protected under the Canadian Charter of Rights and Freedoms and that Toronto does not have jurisdiction over their design. This report fails, as the Department has consistently failed, to recognize that “natural gardens” are specifically recognized as being exempt by the bylaw. Only those few that seek to include long turf grass or noxious weeds may be required to apply for an exemption. Instead, natural gardens are being asked to hold to a higher standard of compliance than surrounding properties, which often may contain more of the “weed” species listed in staff reports and which are generally more harmful than the gardens charged.

It is unlikely that any conservation gardener would deliberately seek to contravene the covenants of Bylaw 489 by growing noxious weeds. Some may choose to leave sections of unmown turf grass, presumably in preparation for replacing those areas with native species, in which case they may choose to apply for the exemption as provided. Those that may inadvertently contravene the bylaw by failing to recognize prohibited plant species should willingly comply when those species are identified or may elect to apply for exemption. Education; of staff, the complainant, and in rare instances, the gardener; is the key to compliance.

If MLS department staff cannot be trained to recognize the short list of plants that Toronto actually wishes to control within its boundaries, this function should be passed to Weed Inspectors as designated under the Ontario Weed Act, rather than allowing ByLaw Officers to continue to intimidate law abiding, environmentally and fiscally responsible residents.

Of note within Appendix A of the report:

The report in no way addresses Council’s request to “pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens“.

Should the MLS Department choose to prosecute a “natural garden” the right of appealing this abuse of authority will transfer to the Executive Director of that same department…eliminating any public petition or trial by elected officials. Should the resident choose to refute the Director’s decision, they will be forced to pay a $200 fee despite their assertion that they are not in violation of the bylaw. The proposed process also allows for the prejudicing of the Community Council hearing the appeal by reporting that the Executive Director has deemed the garden unacceptable.

Adding to the financial burden and intrusion into the privacy of the resident, even after undertaking the appeals process, the report allows that “Council may require, as a condition of approval, that City staff monitor the natural garden at the expense of the applicant.” Note; Committee elected to remove the portion in bold from the report before passing the remainder to Council for final approval.

The report encourages violating the privacy of residents by directly informing their neighbourhood that they have been charged with a municipal offense…creating the impression that the plantings are somehow improper. This furthers the existing illegal practise of advertising alleged bylaw infractions on the City’s website.

The report places the regulation of “natural gardens” in the same category as unmown grass and noxious weeds. No other style of garden is specifically subjected to controls beyond adhering to height limitations on turf grass and specified species. Conservation gardens, it deserves to be noted, are actually desirable; having proven economic, social, and environmental benefits.

The report relies on regulating gardens based on individual perceptions of their aesthetic value rather than any actual health or safety defect. This clause clearly illustrates the MLS Departments lack of understanding of the Charter of Rights and Freedoms and the precepts governing ecological gardens.

“Natural Gardens” continue to be segregated from all other gardens based solely on interpretations of their appearance rather than by the presence of the regulated aspects of unmown lawn or presence of noxious weeds.

The report specifies the prohibition of “invasive weeds” without having applied to have additional plants designated as local weeds under the Ontario Weed Act. It should be noted that the list of plants recommended for xeriscaping as attached to the report contains numerous species commonly sold through retail nurseries that are in fact invasive and which are prohibited from sale in many environmentally aware jurisdictions. [(4)(c)[3]]

The report requires property owners to enter into a contract which essentially passes control of their yard to the MLS Department. [(4)(c)[3]] and [(5)(d)]

The report allows for restricting the location of lawful gardens on private property [(5)(a)]

The report leaves open the definition of maintenance to the same department that has illustrated a lack of understanding of the tenets of conservation gardening. [(5)(b)]

The report unnecessarily reiterates the prohibition against noxious weeds which is already present in 489. [(5)(c)]

Section (12): “A Community Council under delegated authority or Council may require, as a condition of approval, that City staff monitor the natural garden at the expense of the applicant.” placing an unwarranted and financially burdensome control on the resident.

With Respect to Appendix B “Natural Gardens Fact Sheet”

This sheet seeks to define a style of garden using terms that may or may not apply to individual gardens under scrutiny.

It attempts to codify gardens and maintenance preferences outside of official regulations.

It lists plants that while commonly considered undesirable by environmentally responsible residents, are not actually designated noxious weeds.

Link 2 is out of date
Link 3 “xeriscaping” recommends the inclusion of a large number of plants widely recognized as invasive while including very few native species.